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Criminal - Jury Charge (3). R. v. Lozada
In R. v. Lozada (SCC, 2024) the Supreme Court of Canada considered the appellate test for jury charges:III. The Accuracy of the Jury Instructions
A. Relevant Legal Principles
[14] Appellate courts take a functional approach in reviewing jury instructions by asking whether a jury was properly, not perfectly, instructed so as to equip the jury to decide the case according to the law and the evidence (R. v. Abdullahi, 2023 SCC 19, at paras. 4 and 35-37; R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at paras. 8-9; R. v. Jacquard, 1997 CanLII 374 (SCC), [1997] 1 S.C.R. 314, at para. 62). Importantly, the instructions must be read as a whole (Abdullahi, at para. 35). Jury instructions must be responsive to the evidence and set out the law in plain and understandable terms (R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, at paras. 29-32). Responses to questions from the jury require particular care because they carry influence exceeding the instructions given in the final charge (R. v. Naglik, 1993 CanLII 64 (SCC), [1993] 3 S.C.R. 122, at p. 139; Abdullahi, at para. 42). . R. v. Amin
In R. v. Amin (Ont CA, 2024) the Ontario Court of Appeal engages in an extending review of 'similar fact' evidence, here in the context of a 'Mr.Big' police sting operation where the goal is to obtain a confession from the defendant wrt the other, 'target' crime. The court's apparent concern was that by inducing the defendant to become involved with the fake crimes, the jury would be likely to be prejudiced against them in the same manner that 'similar fact' evidence can.
In these quotes, the court discusses jury instructions - here in the context of similar fact ("bad act evidence"):(3) The Trial Judge Erred by Failing to Warn the Jury
[63] The trial judge also erred in law by not warning the jury about the dangers that the murder advice and the June 27 statements posed. This failure deprived the jury of a fundamental warning they needed to properly decide the case.
[64] The appellant has the right to have a properly instructed jury decide whether he is guilty or not guilty. This right required the trial judge to give the jury a sufficient understanding of the law. To do so, the trial judge had to give the jury necessary instructions on the law with enough detail to enable the jury to decide the case. He erred in law because he was required to warn the jury about the dangers of bad act evidence but did not do so: R. v. Abdullahi, 2023 SCC 19, 483 D.L.R. (4th) 1, at paras. 35, 45-46, 49.
[65] The trial judge was required to warn the jury about the murder advice and the June 27 statements. Because bad act evidence is so dangerous, the general rule is that trial judges who admit such evidence must instruct the jury about its limited use and dangers: Handy, at para. 70; B. (F.F.), at pp. 733-735; R. v. D. (L.E.), 1989 CanLII 74 (SCC), [1989] 2 S.C.R. 111, at p. 128; R. v. M.T., 2012 ONCA 511, 294 O.A.C. 111, at para. 82. The trial judge must tell the jury that they can only use other bad act evidence for the legitimate purpose for which it was admitted and cannot use it to infer that the accused is the type of person who likely committed the charged crime: Handy, at para. 70; R. v. Bomberry, 2010 ONCA 542, 267 O.A.C. 235, at para. 33. Juries need these warnings because they lack the benefit of judicial experience about this evidence’s dangers and might otherwise engage in the natural human tendency to judge people based on their bad character: Abdullahi, at para. 32; Handy, at paras. 39-40; Z.W.C., at para. 94. Failing to warn the jury risks causing it to unfairly and wrongfully convict the accused based on prejudice rather than proof: B. (F.F.), at p. 735; D. (L.E.), at pp. 127-128; Handy, at para. 139.
[66] The general rule that trial judges must warn the jury about bad act evidence’s dangers and limited uses is subject to a narrow exception: A warning is not required if the facts of the case negate any realistic possibility that the trier of fact will use bad act evidence improperly: R. v. Beausoleil, 2011 ONCA 471, 277 C.C.C. (3d) 50, at paras. 20-21, 26. This may be the case if the bad act evidence has low prejudicial effect (R. v. C.B., 2008 ONCA 486, 237 O.A.C. 387, at para. 35), is not adduced by the Crown as propensity evidence (Beausoleil, at paras. 21-22), is primarily used by the accused rather than the Crown (R. v. A.G. (2004), 2004 CanLII 36065 (ON CA), 190 C.C.C. (3d) 508 (Ont. C.A.), at para. 8), and/or where warning the jury would prejudice the appellant by drawing attention to the bad act evidence (C.B., at para. 35). These factors are not a checklist and the presence of one or more of them will not always negate a realistic possibility of misuse.
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